(dissenting). Because the majority opinion compliantly embraces the federal interpretation of the Federal Rules of Evidence, disregarding Michigan precedent and policy, I respectfully dissent. Properly interpreted, MRE 801(d)(1)(C) excludes from the definition of hearsay only the out-of-court identification statements of the person who actually made the earlier identification. Thus, testimony of the out-of-court statement by a third party who witnessed the identification falls within the definition of hearsay and is not admissible as substantive evidence. MRE 802.
I
Two types of persons may provide identification testimony during trial: (1) the person who actually made the extrajudicial identification (the "identifier”), and (2) a third party who observed the identifier make the out-of-court identification. Generally, the objections asserted regarding the admission of the extrajudicial identification concern (1) the hearsay nature of the testimony, and (2) the effect of improperly bolstering the identifier’s in-*391court identification. People v Sanford, 402 Mich 460, 486; 265 NW2d 1 (1978).
MRE 801(d)(1)(C) governs the admissibility of extrajudicial identification testimony. The rule states:
(d) Statements which are not hearsay. A statement is not hearsay if—
(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (C) one of identification of a person made after perceiving him ....
II
When determining the proper application of a Michigan rule of evidence, the rules of statutory construction are instructive. When a statutory provision is clear and unambiguous, the court will apply the provision as written.1 Gilroy v General Motors Corp (After Remand), 438 Mich 330, 341; *392475 NW2d 271 (1991). In the event that the Court is required to construe a provision, the Court must discover and effectuate the intent of the formulating body. Storey v Meijer, Inc, 431 Mich 368, 376; 429 NW2d 169 (1988). The Court must ascertain and apply a reasonable construction that promotes the purpose of the provision.
A
This Court adopted the Michigan Rules of Evidence in 1978. A preview of the proposed rules included the drafting committee’s comments regarding the rules’ effect on prior Michigan law. While the committee’s comments are in no way binding upon this Court, they are nevertheless instructive with respect to this Court’s intent in adopting the rules.
While the committee recognized the similarity between the language of proposed MRE 801(d)(1)(C), and its federal counterpart, FRE 801(d)(1)(C), it did not indicate that the application of the Michigan rule would mirror the application of the federal rule. To the contrary, the committee, in its statement regarding MRE 801(d)(1)(C)’s effect on prior Michigan law, expressly acknowledged that the rule was consistent with prior Michigan law.2
MRE 801(d)(1)(C) is consistent with prior Michigan law in admitting testimony hy a witness as to his own prior statement of identification of a person made after perceiving him. People v Poe, 388 *393Mich 611; 202 NW2d 320 (1972); People v Londe, 230 Mich 484; 203 NW 93 (1925). [399 Mich 1004 (1977). Emphasis added.]
An identifier’s courtroom testimony of an earlier extrajudicial identification constituted hearsay by definition,3 nevertheless, this Court allowed its use as substantive evidence before the adoption of MRE 801(d)(1)(C). However, the Court limited the admissibility of third-party identification testimony, generally excluding it from use as substantive evidence.
Admittedly, before today this Court had not announced whether third-party identification testimony is admissible as substantive evidence when the identifier has either denied making or failed to recall the identification. The Court has, however, expressed its pre-MRE position regarding the use of third-party identification testimony to bolster the identifier’s identification. In People v Mead, 50 Mich 228; 15 NW 95 (1883), the victim of a burglary identified the defendant on the street in the presence of her husband. At trial, the woman identified the defendant as the burglar, and testified about her previous out-of-court identification. The victim’s husband also testified. The prosecutor asked the husband if his wife had recognized *394anyone on the street, and, if so, whom. The husband responded that his wife had recognized the defendant as the robber. The trial court struck the husband’s answer from the record, and this Court upheld the trial court’s action. While the identifier’s repetition of her extrajudicial identification was properly admitted as substantive evidence, the third-party identification testimony was inadmissible. Justice Cooley explained:
[T]he witness, not content with giving a simple answer to it, added what in effect was a statement that his wife told him she recognized the respondent as the burglar. The statement was hearsay, and it was likely to be exceedingly mischievous, for much depended in the case upon this recognition. [Id. at 230. Emphasis added.]
Remaining faithful to this premise, the Court restated the standard regarding the admissibility of extrajudicial identification testimony in Londe. While an identifier may testify regarding an extrajudicial identification, a third party who witnessed the extrajudicial identification may only testify regarding the "circumstances [under which] the identification was made.” Id. at 487.
Almost fifty years later, this Court reaffirmed the Londe holding excluding third-party evidence of extrajudicial identifications. People v Poe, supra at 618-619. Poe arose from a robbery of a supermarket. Four witnesses of the crime attended pretrial lineups. The police notes concerning the lineups indicated that two of the four eyewitnesses positively identified defendant Poe as the robber; one eyewitness stated that Poe looked like the robber, but he could not assert that in court; and the fourth eyewitness identified someone other than the defendant. Despite the lineup results, *395each witness testified at trial that Poe was the robber.
While the Court approved of the admission of the police officer’s testimony and lineup notes to reflect the hesitation by one witness and the misidentification by the other,4 it prohibited their use as substantive evidence to reveal the consistent pretrial identification made by the two remaining eyewitnesses. The Court, relying on Londe, restricted third-party identification testimony to " 'what took place’ and under 'what circumstances the identification was made . . . .’ ”5 Poe at 618. Unlike Londe, however, the Poe Court defined inadmissible third-party identification testimony as testimony concerning "the nature or quality of the identification.” Poe at 618.
The status of the Michigan rule remained settled despite this Court’s plurality opinion in Sanford. While the entire Court concluded that the admission of the third-party identification testimony of the extrajudicial identification did not require reversal of the defendant’s conviction, the Court split regarding why the admission did not compel relief.6_
*396The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment but the case is not authority beyond the immediate parties. [People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973).]
The Mead/Londe/Poe trilogy firmly established Michigan’s pre-MRE position regarding the admissibility of identification testimony. An identifier’s testimony of an extrajudicial identification, albeit hearsay by definition, is admissible as substantive evidence. Third-party identification testimony offered to bolster the identifier’s identification, however, is limited to the circumstances surrounding the identification, prohibiting testimony about the content of the identification as substantive evidence.
Justice Boyle’s interpretation of the rule contradicts the drafting committee’s comments that "MRE 801(d)(1)(C) is consistent with prior Michigan law . . . .” 399 Mich 1004. (Emphasis added.) This Court repeatedly held that a third party, who witnessed an extrajudicial identification, may only testify about the "circumstances [under which] the identification was made.” Londe, supra at 487. See also Mead and Poe. The Court refused to allow a third party to testify of the identification to bolster the identifier’s identification. Nevertheless, Justice Boyle’s interpretation permits the admission of the prohibited testimony. To temper this fundamental anomaly, Justice Boyle notes in a footnote that trial courts may exclude the bolstering testimony via MRE 403. Ante, p 390, n 19. This is a far cry from the previously mandated exclusion of *397such evidence. With a few keystrokes, my sister has eradicated a century-old rule that was intended to remain consistent.
Furthermore, a vivid or eccentric imagination is not required to reach the conclusion that if this Court consistently excluded third-party identification testimony that merely bolsters the identifier’s identification, then it would have, given the opportunity, assuredly excluded the less reliable, inherently more suspect, third-party identification testimony of a recanted or forgotten identification. In this context, Justice Cooley’s justification for exclusion is equally compelling: "it [the third-party identification testimony] was likely to be exceedingly mischievous, for much depended in the case upon this recognition.” Mead, supra at 230. Third-party identification testimony is inherently unreliable because the accuracy of the identification cannot be adequately assessed by the trier of fact.
This Court recognized the problems inherent in eyewitness identification. See People v Anderson, supra, and accompanying appendix at 192-220. While one infirmity concerns the suggestiveness of the identification procedure employed, this is only one of many infirmities that render eyewitness identification suspect.
Some are implicit in the original situation, including, for example, the insignificance — at the time and to the observer — of the events, the length of time of observation, and the less than ideal observation conditions which generally apply (distance, poor lighting, fast movement, or crowds). The witness himself is a major source of unreliability, due to the effect of observing under stress (especially applicable in the case of observers who are the victims as well), or often to defects in physical condition such as age, sickness, or fatigue.[*3987] [Comments, The use of prior identification evidence in criminal trials under the federal rules of evidence, 66 J Crim L & Criminology 240, 246 (1975).]
The majority opinion overlooks the infirmities inherent in eyewitness identification. Even in the absence of a suggestive identification procedure, the intrinsic infirmities in eyewitness identification remain. When an identifier denies or forgets an extrajudicial identification, the jury cannot assess whether the identifier was equipped to make an accurate identification. Furthermore, the third party cannot provide information relating to the identifier’s initial observation of the defendant and the identifier’s ability to accurately transfer these images to the extrajudicial identification.
When the identifier denies or forgets an extrajudicial identification, the jury is not presented with the tools necessary to determine whether the alleged extrajudicial identification was accurate. When the third-party identification testimony is offered merely to bolster, the jury will have had the benefit of hearing how the identifier made the identification. The accuracy of the identification can be tested. It defies logic to suggest that earlier panels of this Court would have embraced third-party identification testimony whose accuracy could not be credibly tested when it excluded third-party identification testimony whose accuracy could be tested.
B
The policies prompting the universal exclusion *399of hearsay testimony, as well as the justification for established exceptions, shed further light on this Court’s intent regarding the proper boundaries of MRE 801(d)(1)(C).
Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Generally, hearsay evidence is inadmissible unless it qualifies as an exception to the hearsay rule. MRE 802. Hearsay is repugnant to the truth-seeking function of litigation because the statement is made in the absence of testimonial safeguards implemented to foster reliability. At trial a witness must testify under oath or affirmation, exposed to the threat of perjury. The trier of fact can observe a witness’ demeanor and physical response to offered testimony.8 Furthermore, a witness is exposed to contemporaneous cross-examination regarding his offered assertions. Binder, Hearsay Handbook (2d ed), § 3.01, p 59. Cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore (Chadbourn rev), § 1367, p 32. The safeguards are believed to aid the exposure of possible ambiguity, insincerity, faulty perception, and erroneous memory. The absence of the three testimonial safeguards render hearsay statements untrustworthy.
Similarly, the recognition that certain extrajudicial statements possess sufficient indicia of reliability, coupled with a need for the evidence, has prompted this Court to recognize exceptions to the hearsay rule.
*400Exceptions to the hearsay rule are justified by the belief that the hearsay statements are both necessary and inherently trustworthy. [People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992). Emphasis added.]
On the basis of the policies prompting the hearsay rule and its exceptions, it cannot be denied that the Court generally intends to exclude from trial evidence that is untrustworthy and unreliable. It is from this premise that the different types of identification testimony must be examined in order to determine whether such statements are excluded from the definition of hearsay pursuant to MRE 801(d)(1)(C).
III
This Court extensively examined the reliability of eyewitness identification in People v Anderson, supra. On the basis of documentation of instances of erroneous eyewitness identification and scientific principles, the Court concluded "that there are serious problems concerning the accuracy of eyewitness identification and that real prospects for error inhere in the very process of identification completely independent of the subjective accuracy, completeness or good faith of witnesses.” Id. at 180.
The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: "What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the *401brutalities of ancient criminal procedure.” [United States v Wade, 388 US 218, 228; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).]
As a result, eyewitness identification testimony is burdened by the same characteristic found offensive in hearsay evidence: it is untrustworthy.9
Considering that no evidence, other than an outright confession, probably carries as much weight, not only with lay jurors but with many law enforcement officials as well, such criticisms are by no means academic. [66 J Crim L & Criminology 245.]
1. IDENTIFICATION TESTIMONY BY THE IDENTIFIER
While the reliability of an eyewitness identification is questionable, it has nevertheless been recognized that an identification made soon after an event is generally more probative than an identification made during trial.
[T]he earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. [4 Weinstein & Berger, Evidence, ¶ 801(d)(1)(C)[01], p 801-217. Citation omitted.]
We should not blind ourselves to what the law has learned by bitter experience — identification in court is frequently an almost worthless formality. ... By the time of trial positions have often become so fixed and memory so attenuated and distorted by subsequent events that witnesses sel*402dom make identifications on the basis of their raw recollection of the original event. [United States v Barbati, 284 F Supp 409, 413 (ED NY, 1968). Citations omitted.]
The identifier’s identification testimony possesses attributes that elevate eyewitness identification from its unreliable status to a position that satisfies this Court’s intent of admitting evidence that is necessary and trustworthy.10 In an attempt to provide the most probative evidence to the trier of fact, this Court has admitted testimony of an extrajudicial identification offered by the identifier for over one hundred years.11 While the reliability of eyewitness identifications is dubious, the identification is often essential to resolution of the case. Admittedly, an extrajudicial identification cannot be tested by contemporaneous cross-examination. However, when an extrajudicial identification is offered by the identifier, the opposing party can scrutinize the circumstances prompting the identifier’s selection. Cross-examination will reveal how the identifier came to make the identification, potentially exposing any weaknesses and uncertainty of the prior identification. This ability to test the identification and the process attendant to the identification provides, in essence, an indicia of reliability, not necessarily that the identification is correct, but in the sense that the factfinder is adequately equipped to judge the accuracy of the often vital identification.12_
*403Identification testimony offered by the identifier is the most reliable evidence of identification because it was made before the influences found at trial, before the identifier’s position has become fixed. The trustworthiness of the assertion can be tested through cross-examination before the trier of fact, while the identifier is under oath. Furthermore, the identifier has personal knowledge of why the identification was made, providing a basis not only for cross-examination, but for meaningful cross-examination.
This type of evidence is in accord, not only with this Court’s pre-MRE position concerning identification testimony, but also with its purpose and policies underlying adherence to the hearsay rule and the recognition of various exceptions. Accordingly, MRE 801(d)(1)(C) excludes from the definition of hearsay the out-of-court statements of identification as communicated at trial by the identifier.
2. THIRD-PARTY IDENTIFICATION TESTIMONY
Unlike identification testimony of the identifier, third-party identification testimony possesses none of the attributes that would elevate it from its unreliable status. When a third party testifies about a prior identification by the identifier, the accuracy of the identification (which is generally being used to convict a defendant of a crime), *404cannot be tested. As a result, the third-party identification testimony is not only unreliable, but it lacks probative value. It cannot credibly provide the trier of fact information the third party knows to be true. MRE 801(d)(1)(C) does not authorize the admission of third-party identification testimony as substantive evidence irrespective of the identifier’s testimony regarding the extrajudicial identification.
a. IDENTIFIER TESTIFIES OF EXTRAJUDICIAL IDENTIFICATION
Regardless of the identifier’s identical testimony, third-party testimony of another’s identification is unreliable. The third-party identification testimony cannot vouch for the accuracy of the identification, and its cumulative effect is potentially dangerous.
Third-party bolstering occurs when, for example, a police officer present at the lineup testifies in court that the witness in his presence said, "This' is the man.” Obviously the testimony of the police officer is of no value whatsoever. If the witness made a "wrong” identification, the police officer is bolstering that mistake. If the witness made a "right” identification, the police officer is bolstering evidence he knows nothing about, since he himself never saw the perpetrators. Yet juries ask, "How can they both be mistaken?” [Sobel, Eyewitness Identification (2d ed), § 4.3(b), p 4-18. Emphasis in original.]
The third-party identification testimony fails to reveal whether the identifier accurately transferred the mental images made during the commission of the crime to the later extrajudicial identification. The third party cannot testify about *405the identifier’s "ability to remember and articulate the details of the crime, and the appearance of the offender.” Mauet, Prior identifications in criminal cases: Hearsay and confrontation issues, 24 Ariz L R 29, 49 (1982). The third party cannot testify about the factors scrutinized by the trier of fact when determining the accuracy of the identifier’s identification. Such testimony is not only irrelevant, but misleading because it appears to corroborate the identifier’s testimony while it is not true corroboration testimony at all.13 Id. While the third party can corroborate the fact that the identifier did identify a person at a certain time and place, the third party has no basis on which to corroborate the accuracy of the statement.
In light of the unreliability of such testimony, coupled with this Court’s pre-MRE position regarding third-party identification testimony, third-party identification testimony that bolsters the identifier’s identification is inadmissible as substantive evidence. Third-party identification testimony is restricted to " 'what took place’ and under 'what circumstances the identification was made’ . . . .” Poe at 618. The third party cannot testify about the identifier’s actual identification because this type of statement is hearsay, MRE 801(c), and it is not excluded from the definition of hearsay under MRE 801(d)(1)(C).14
*406b. IDENTIFIER DENIES OR FORGETS MAKING EXTRAJUDICIAL IDENTIFICATION
Third-party testimony of an identifier’s identification that the identifier has either denied making or failed to recall is devoid of any attributes that would make it reliable.15 The eyewitness identification itself is unreliable. Furthermore, under this situation there is no one available to testify to the accuracy of the identification.16 While the alleged identifier can be cross-examined,17 the cross-examination is, in reality, an exercise in futility.
"[SJuppose that at the trial the witness not only fails to identify the defendant, but also denies that he ever identified him on a prior occasion. May the *407prosecutor prove by mere observers that a positive identification actually took place, and obtain a conviction on the basis of that testimony? Clearly the answer would be no. . . . The plain common sense prohibiting such testimony is obvious. True it is that the person alleged to have made the out-of-court statement (i.e., the original identification) is present in court and available for cross-examination .... Here, however cross-examination would constitute an exercise in futility. Of what possible value to the defendant is a cross-examination of a witness as to the accuracy of an identification he claims he never made?” [4 Weinstein & Berger, ¶ 801(d)(1)(C)[01], p 801-223, n 27, quoting Wall, Eye-Witness Identification in Criminal Cases, 161-162 (1965).]
The Massachusetts Supreme Court reached a similar conclusion:
Prior identifications are admissible as probative evidence notwithstanding their hearsay attributes because of the superior probative worth of an identification made closer in time to the events in question. Where, however, the extrajudicial identification is established not by the identifying witness but by a person who observed the identification, we believe that probative worth is outweighed by "the hazard of error or falsity in the reporting.” Where there is a dispute not only as to the accuracy of a pretrial identification, but also as to whether the identification was in fact made, "the evidential value of the prior identification is almost completely dissipated.” Thus, a police officer’s attribution to a witness of a positive identification denied by the witness at trial is not admissible to prove the identification. Its effect is limited to impeachment. [Commonwealth v Daye, 393 Mass 55, 61; 469 NE2d 483 (1984). Citations omitted.]
While the majority insists that defense counsel *408has the ability to attack the extrajudicial identification via cross-examination, it cannot seriously contend that cross-examination can expose the accuracy, trustworthiness or the reliability of the identification.18 The absence of a scintilla of reliability of this type of testimony, coupled with this Court’s pre-MRE position regarding the admissibility of third-party identification testimony, compels the conclusion that MRE 801(d)(1)(C) does not exclude from the definition of hearsay, third-party identification testimony of an identifier’s extrajudicial identification when the identifier denies or forgets making the extrajudicial identification.19 This testimony is repugnant to the truth-seeking function of trial, contrary to the intent and policies surrounding the adoption of MRE 801(d)(1)(C).
3. THE FEDERAL INTERPRETATION
While I am aware of the federal interpretation of FRE 801(d)(1)(C), see United States v Jarrad, 754 F2d 1451 (CA 9, 1985); United States v Lewis, 565 F2d 1248 (CA 2, 1977), I cannot espouse its rationale or result. Admittedly, the federal approach provides persuasive authority; this Court, however, is not bound by the federal application. We have in the past interpreted the MREs more *409stringently than their federal counterparts. See Meeboer (After Remand) at 340, n 1 (Brickley, J., dissenting). When the federal approach is repugnant to this Court’s intent in adopting the MREs, it is this Court’s duty to reject the federal application. Furthermore, not all commentators embrace the direction the federal rule has taken. See Seidelson, Third-party testimony about prior identifications and federal rule of evidence 801(d)(1)(C): A petition for rehearing, 8 Rev of Litigation 259 (1989). Professor Seidelson suggests that the federal courts have erred in their application of FRE 801(d)(1)(C) because of their erroneous reliance on extraneous statements made during the floor debate. "It is established law . . . that the statements and opinions of legislators uttered in the debates are not competent aids to the court in ascertaining the meaning of statutes.” Id. at 271, n 38 (citations omitted). Professor Seidelson asserts that the federal courts would have properly applied FRE 801(d)(1)(C) had it effectuated the intent of the conference committee: The codification of existing federal law which allowed "only the substantive admissibility of an identifying witness’s testimony as to his prior identification.” Id. at 267. I would not disregard the precedent and policies of this Court to simply mimic the Federal Rules of Evidence and other jurisdictions.
iv
Third-party identification testimony is limited to the facts and circumstances surrounding the identification, prohibiting testimony of the content of the identification as substantive evidence. Accordingly, the admission of Officer Bivens and attorney Hall’s testimony of Carey Jackson’s earlier identification as substantive evidence was erroneous. MRE 802.
*410Furthermore, I cannot agree with the Court of Appeals conclusion that "admission in this case was not prejudicial because two very credible witnesses for the prosecution positively identified the defendant.” 193 Mich App 371.
The testimony of Lasenby and Mann is suspect at best. In regard to Lasenby, his trial testimony contradicted the initial statement he gave to the police. Additionally, he acknowledged that he testified only because he feared arrest. Such testimony is neither positive nor particularly credible.
The other "credible witness” was the state witness, Melvin Mann. Mann’s testimony can only be characterized as "incredible.” Mann failed to inform the police of his presence at the crime scene until he was arrested for the victim’s murder. In addition to this active concealment, Mann went out of his way to hide pertinent evidence following the shooting of his friend and business partner. Immediately following the shooting, Mann left the scene of the crime in the Jeep in which Nance was shot under the pretense of getting help.20 While his friend was dying on the ground, Mann drove to another acquaintance’s house, hid the Jeep in a garage, disposed of the bullet-riddled seatcover and hid the keys to the vehicle. Upon his return to the crime scene, he failed to report anything to the police. While he was "persuaded” to give a statement,21 this statement differed from his ultimate trial testimony.
In addition to the dubious credibility of both identifying witnesses, their versions of the event were inconsistent. Lasenby asserted that the defendant wore blue jeans at the time of the shoot*411ing, while Mann stated that the defendant wore beige shorts.
These facts, coupled with the heavy reliance most juror’s place on a police officer’s testimony,22 clearly prejudiced the defendant. Accordingly, the defendant is entitled to a new trial.
Levin, J., concurred with Cavanagh, C.J.I take issue with my sister’s declaration that the language of MRE 801(d)(1)(C) "could not be more clear.” See ante, p 375. The language of MRE 801(d)(1)(C) fails to resolve which type of identification testimony is excluded from the definition of hearsay. The rule’s ambiguity is further evidenced by the Court of Appeals split on its proper application. While some panels admit only the identification testimony of the identifying witness, limiting third-party testimony to the facts and circumstances of the prior identification, People v Michael, 181 Mich App 236, 241; 448 NW2d 786 (1989), People v Turner, 120 Mich App 23, 38; 328 NW2d 5 (1982), People v Price, 112 Mich App 791, 801-803; 317 NW2d 249 (1982), People v Mock, 108 Mich App 384, 387-388; 310 NW2d 390 (1981), People v Prophet, 101 Mich App 618, 621-623; 300 NW2d 652 (1980), and People v Horton, 98 Mich App 62, 71; 296 NW2d 184 (1980), other panels have not limited third-party identification testimony, instead allowing the third-party to testify of the extrajudicial identification, People v Newcomb, 190 Mich App 424; 476 NW2d 749 (1991), People v McCurdy, 185 Mich App 503, 505; 462 NW2d 775 (1990), People v Beam, 125 Mich App 289; 335 NW2d 684 (1983), People v McConnell, 124 Mich App 672, 679-680; 335 NW2d 226 (1983), People v Turner, 116 Mich App 421; 323 NW2d 425 (1982), and People v Adams, 92 Mich App 619; 285 NW2d 392 (1979).
It is important to note that the committee expressly indicated the rules that modified or changed prior Michigan law. For an example, see the comments concerning MRE 801(d)(1)(A) and (B), 399 Mich 1003 (1977). Furthermore, the committee explicitly acknowledged when a proposed rule was "generally consistent,” permitting some room for deviation from the prior Michigan position. For an example, see the comments concerning MRE 801(d)(2)(A) and MRE 803(3), id. at 1004, 1010.
Hearsay is defined as an extra-judicial statement which is offered for the purpose of proving the truth of the thing said. While some writers have suggested that the hearsay rule need not' be applied to the extra-judicial statements of a declarant, who later testifies as a witness, this Court has not recognized such an exception to the hearsay rule. Of course, prior inconsistent statements of a witness can be shown for impeachment purposes. . . . Where the prior extra-judicial statement of a witness agrees with his testimony, the out-of-court remark is self-serving, and is not generally permitted under any established exception to the hearsay rule. [People v Hallaway, 389 Mich 265, 275-276; 205 NW2d 451 (1973) (opinion of Brennan, J.).]
"The use of these documents to refresh the witnesses’ memory and to test their reliability was proper. See, generally, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 598, p 775.” Poe at 617. Refreshing a witness’ memory, with hearsay evidence, is permitted as a recognized exception to the hearsay rule. See, generally, Jaxon v Detroit, 379 Mich 405; 151 NW2d 813 (1967), and MRE 803(5). Furthermore, use of the notes to impeach a witness’ trial testimony, is similarly an accepted procedure. Although, in such an instance, the trial court should instruct the jury regarding the evidence’s limited purpose. MRE 105.
In addition, the Poe Court did not disturb the trial court’s decision to admit the identifying witnesses’ testimony of their own extrajudicial identification. Poe at 618-619.
This Court adopted the Michigan Rules of Evidence after the Sanford opinion was written, but before it was signed. The common-law rules governed the disposition in Sanford; thus, any discussion regarding the newly enacted Michigan Rules of Evidence can only be characterized as nonbinding dicta. See McNally v Wayne Co Bd of Canvassers, 316 Mich 551, 557-558; 25 NW2d 613 (1947).
I will concede that some witnesses have sufficient opportunity to observe the defendant, coupled with the ability to adequately transfer the observed image to the extrajudicial identification. I would submit, however, that this is the exception to the rule. See Anderson, and accompanying appendix.
The solemnity of the occasion and possibility of public disgrace can scarcely fail to impress the witness, and falsehood no doubt becomes more difficult if the person against whom [it is] directed is present. [2 McCormick, Evidence (4th ed), § 245, p 94.]
For a considered examination of the reliability of eyewitness testimony, see Anderson at 172-180, and accompanying appendix at 192-220.
Trustworthy evidence includes evidence that, while suspect, can be adequately tested and scrutinized by the trier of fact. This type of evidence furthers the truth-seeking function of trial.
See discussion of Mead, supra at 393-394.
Generally, a hearsay statement is deemed to possess an indicia of reliability when made under specific circumstances that make it more probable than not that the substance of the statement is true. This recognition justifies admitting hearsay, an exception to its general exclusion. For example, the dying declaration exceptions recognize *403that most people will not lie when they believe that death is impending. See MRE 804(b)(2). Similarly, MRE 803(2) permits the introduction of excited utterances, which are hearsay by definition. Admission is justified because the spontaneous statement that results from a startling event is considered to be a sincere response.
While not identical, admission of the identifier’s testimony of an extrajudicial identification possesses analogous safeguards: the proximity of an earlier identification is more probative than the formalistic in-court identification, and its accuracy can be evaluated by the trier of fact.
Mauet characterizes true corroboration testimony as testimony by different sources, based on firsthand knowledge, that reveals the same conclusion. Id. at 49.
The third party may testify, however, about the identifier’s prior identification if it has been suggested that the identifier’s in-court identification is the product of recent fabrication, improper influence or motive.
Statements which are not hearsay. A statement is not hearsay if—
(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (B) consistent with *406his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive .... [MRE 801(d)(1)(B).]
Third-party testimony of an identification the identifier denies or forgets making offers neither the traditional indicia of reliability: statement made under specific circumstances that make it more probable than not that the substance of the statement is true, nor an analogous safeguard: the availability of information that provides the trier of fact with the ability to access the accuracy of the statement.
Admitting third-party identification testimony creates a potential problem of constitutional dimension. Specifically, whether the introduction of such testimony violates a defendant’s constitutional guarantee of confrontation. Admission appears especially suspect in instances in which the identifier denies or forgets making the extrajudicial statement. While the federal courts have examined this issue and found no federal constitutional violation, United States v Owens, 484 US 554; 108 S Ct 838; 98 L Ed 2d 951 (1988), this Court has yet to determine the issue under the Michigan Constitution. Const 1963, art 1, § 20. I do not address this issue because this case can be disposed of on nonconstitutional grounds. " 'Constitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case.’ ” Lisee v Secretary of State, 388 Mich 32, 40; 199 NW2d 188 (1972) (citations omitted). The majority, however, concludes that MRE 801(d)(1)(C) allows the admission of third-party identification testimony. Yet, the majority fails to examine the confrontational issue that its holding implicates.
The rule conditions admissibility of the statement of identification on the opposing party’s opportunity to cross-examine the identifier. MRE 801(d)(1)(C).
The factors upon which the credibility of testimony depends are the perception, memory, and narration of the witness. Did the witness perceive accurately? Has he retained an accurate impression of what he perceived? Is his language such as to convey that impression correctly? [2 McCormick, supra, § 245, p 581.]
The critical issue regards the credibility of the recanting or forgetful identifier. The third-party identification testimony is admissible for impeachment purposes as a prior inconsistent statement. The jury does not need third-party identification testimony as substantive evidence to evaluate the identifier’s credibility. Once confronted with the impeaching evidence, the jury can give weight to the witness and his trial testimony.
Recall that Mann was at a public phone at the time of the shooting. A call to 911, for assistance, is free.
Mann failed to give a statement until his arrest for Nance’s death.
Justice Riley, during her tenure at the Court of Appeals, recognized the potential danger of allowing police officers to repeat an extrajudicial identification. Third-party identification testimony "should be confined to relating the circumstances surrounding the identification,” Prophet, n 1 supra at 624, "[t]his is especially true where, as here, a central issue at trial is identification and where the third party is a police officer, whose testimony may be given undue weight by the jury.”